Regina v Hayter (Appellant) (On Appeal from the Court of Appeal (Criminal Division))
51. This example simply goes to show that, in reality, on the Crown's approach, what the jury are being asked to do is to use their conclusions on the evidence against A in the case against B. That is tantamount to using the evidence itself, which is admissible against A, as evidence against B, against whom it is inadmissible. If, instead of first considering the evidence of A's confession in relation to A and reaching a conclusion on it as to his guilt, they first considered that evidence in relation to B, they would come to precisely the same conclusions in respect of both A and B. The "modest 'erosion'" of the hearsay rule simply obliterates the rule as it applies to statements of co-defendants in a joint trial.
52. Of course, the general hearsay rule and, more particularly, the rule that the extrajudicial admission or confession of one defendant is admissible only against him, are productive of anomalies. Generations of judges and practitioners have been well aware of this. One area where the point used to be sharply focused was divorce on the ground of adultery. In Rutherford v Richardson  AC 1, 5, for instance, Viscount Birkenhead stressed that the decision of legal issues must depend on rigid rules of evidence necessarily general in their scope. It was very likely, therefore, in individual applications, to present an appearance of artificiality and even of inconsistency. He added:
He illustrated his point in this way, at p 6:
Many similar statements of the law on adultery are to be found in both the English and Scottish reports, as well as in textbooks on the law of evidence. In the Court of Session, indeed, at one time tyro advocates always had to consider the point when drafting summonses in actions of divorce on the ground of the wife's adultery. If there was only sufficient evidence to prove the adultery against the wife, then the wife would be the sole defender, but if there was also sufficient evidence against the paramour to prove adultery, he would be made a co-defender, with a view to proving his adultery and recovering the expenses of the action from him. Nearly always, the course to be adopted depended on whether the paramour was present at the time when the wife admitted her adultery to the private detectives acting for her husband.
53. On the other hand, if the general approach favoured by the Crown were correct, it is hard to imagine a clearer case than adultery for applying their remedy, since the adulterers were necessarily connected with one another. When the judge considered the wife's admission and the other evidence, as Viscount Birkenhead notes, he might conclude that she committed adultery with the paramour. Having made that finding, why should he not have applied it in considering the case against the paramour and so concluded that the paramour committed adultery with the wife? Apparently, the Crown's answer would be that the only "fact" that the judge could consider in relation to the paramour was that the wife had committed adultery - not that she had committed adultery with the paramour. So the judge would have to truncate his finding when considering the case of the paramour. Needless to say, there is not the slightest hint of such a bizarre approach in the case law. On the contrary, the cases show, quite simply, that the evidence of the wife's confession was regarded as inadmissible against the paramour and so it formed no part of the evidence in the case against him. So the court would find that the wife committed adultery with the paramour but not that the paramour committed adultery with the wife.
54. Wigmore describes this result as "perfectly and absurdly artificial" and says that it "negates the claim of courts of justice to be efficient fact-finders": Evidence in Trials at Common Law (Chadbourn rev, 1972), Vol 4, para 1076 n 13. There is force in that criticism, especially as regards the field of civil law. Not surprisingly, therefore, the Civil Evidence Act 1995 replaced the common law rules with a new system which includes carefully worked-out safeguards. In considering whether it is appropriate for the House to make significant changes in the rules on extrajudicial confessions of co-defendants in criminal trials, it is important to bear in mind the words of Lord Reid in Myers v Director of Public Prosecutions  AC 1001. The case concerned a different aspect of the law of hearsay in criminal proceedings and was decided in 1964, before the Law Commission was established and before the Practice Statement allowing the House to depart from its previous decisions. Nevertheless, Lord Reid's statement of principle, at pp 1021E - 1022C, as to the inadvisability of the House modifying particular aspects of the law on hearsay evidence, remains as powerful today as when he made it:
In R v Blastland  1 AC 41, 52H Lord Bridge of Harwich said that the majority decision of the House in Myers v DPP "established the principle, never since challenged, that it is for the legislature, not the judiciary, to create new exceptions to the hearsay rule."
55. Whether or not it has always been followed religiously, Lord Reid's guidance is particularly apposite in this case where the Law Commission conducted a wide survey of the law and did not support any change in relation to Crown evidence of extrajudicial admissions of co-defendants in criminal trials. In their report on Evidence in Criminal Proceedings: Hearsay and Related Topics (Law Com No 245, 1997), para 8.96, they said
Plainly, like Viscount Birkenhead, the Law Commission considered that, where the consequences of conviction in a criminal trial are so serious, it is essential to adopt a standard of admissibility on this matter which is so cautious as to be meticulous.
56. Even more importantly, Parliament agreed with, and gave effect to, the Law Commission's conclusion. Section 118(1) of the Criminal Justice Act 2003 specifically preserves any common law "rule relating to the admissibility of confessions or mixed statements in criminal proceedings."
57. If adopted, the Crown's submission will, in effect, destroy one vital aspect of the common law rule which Parliament has so recently decided should be preserved. In my respectful view, it is not for the House in its judicial capacity to contradict such a clear and recent expression of the will of the legislature, especially when there is no principled basis for doing so. In any event, the proposed change is likely to have undesirable effects in practice. Often, joint trials will be liable to produce different results from separate trials, to the prejudice of defendants. Applications for separate trials can be expected to multiply accordingly. The law of evidence as it is applied by the courts, day in day out, will be unsettled. Certainty will give way to uncertainty and the present, sometimes difficult, distinctions will be replaced by other distinctions which juries will neither understand nor be able to apply sensibly. In short, it seems likely that the House is storing up fresh difficulties for trial judges and juries.
58. For these reasons, as well as for those to be given by my noble and learned friend, Lord Carswell, I would allow the appeal and hold that the Recorder was wrong to reject the appellant's submission of no case to answer.LORD CARSWELL
59. Two long-accepted fundamental principles of the criminal law lie at the heart of this appeal. The first is the rule against the admission of hearsay evidence and the second is the principle that evidence which is admissible only against one co-defendant cannot be taken into account when assessing the guilt of another. The way in which the application of these principles can have an important impact on the result of a trial may be seen in high relief in the present appeal. The question before the House is whether they can or should be modified in the manner which was regarded as justifiable in the courts below.
60. Since the facts and the course of the trial have been summarised in the opinions of my noble and learned friends Lord Steyn and Lord Rodger of Earlsferry, I do not need to do more than deal with them in outline in so far as they are material to the question of law in issue. The case against Raymond Ryan was, apart from his admissions to Vanessa Salter, exiguous and circumstantial. Taken at its height, it was that he had followed the victim Mario Commatteo in his Ford Sierra car on several occasions; he went four or five times to see the appellant Hayter; on one occasion he was observed in Hayter's premises counting out a large sum of money; and Vanessa Salter saw a piece of paper in his flat which bore the words "Whyteleafe" (Commatteo's home address) and "Merstham" (the location of his business premises). He also failed to refer in interview to some facts or circumstances which he might have been expected to mention. It was not suggested that a reasonable jury could have convicted him of the murder of Commatteo if the evidence had amounted to nothing more than that. The oral admissions which he made to Vanessa Salter were therefore crucial to the Crown case against Ryan as it stood at the close of the prosecution evidence.
61. The evidence against Hayter was equally exiguous at that stage. He was very closely and directly implicated in procuring the crime in the statements made by Ryan to Vanessa Salter, but this hearsay evidence was admissible only against Ryan. It was correctly conceded on behalf of the Crown in the statement of facts and issues in the appeal to your Lordships that the circumstantial evidence against him did not provide a case to answer unless it could be proved that Ryan was the killer. If at the close of the Crown case there was evidence of that fact admissible against Hayter, then the circumstantial evidence tending to prove Hayter's complicity, added to the fact that Ryan killed Commatteo, might have been regarded as sufficient to amount to a prima facie case of murder against Hayter.
62. At the close of the Crown case counsel for the appellant submitted that there was no case to answer against him, that is to say, that on the evidence admissible against him at that stage, taken at its height and all accepted as true, a reasonable jury properly directed could not find him guilty of the murder of Commatteo, and the judge should direct an acquittal (I shall refer to this by the convenient term familiar to Irish lawyers as the "direction" stage). A similar submission was made on behalf of Angela Bristow, but none was advanced on behalf of Raymond Ryan.
63. In a careful ruling the Recorder of London, the late Judge Hyam, rejected the submission made in Mrs Bristow's case and went on to consider the appellant's. He considered the authorities cited to him and in particular R v Hickey and others (1997, unreported), which he distinguished, stating at pp 11-13 of his ruling:
The judge continued at pages 15-16:
The judge refused the application for a direction and proceeded with the trial. At the close of the evidence he directed the jury as he had indicated in his ruling. The jury convicted all three defendants of murder.
64. Hayter appealed to the Court of Appeal, and at the hearing counsel contended that the judge had been wrong to refuse his submission that there was no case to answer. Mantell LJ, giving the judgment of the court, stated that the court was impressed with the judge's reasoning and considered that his findings accorded with first principles. He examined the cases of R v Hickey (supra), R v Rhodes (1959) 44 Cr App R 23 and R v Spinks (1982) 74 Cr App R 263, concluding that they did not prevent the court from agreeing with the conclusion reached by the judge.
65. Mantell LJ set out the terms of section 74(1) of the Police and Criminal Evidence Act 1984 ("PACE"), which provides:
He stated in paragraph 18 of the judgment of the court:
The court accordingly dismissed the appellant's appeal. It certified the questions set out by Lord Steyn at paragraph 5 of his opinion and refused leave to appeal. The House of Lords subsequently gave leave to appeal.
66. Mr Kelsey-Fry QC for the appellant submitted that the judge was wrong to refuse his application for a ruling that there was no case for the appellant to answer. Starting from the premise that Ryan's confession to Vanessa Salter was admissible only against Ryan, he contended that unless it had been adopted or assented to by Hayter (which was not the case) it could not be taken into account in any way against the latter at the direction stage. He submitted that it was an impermissible erosion of this principle to direct the jury that they could rely upon their finding of guilt against Ryan - which was based almost wholly on that confession - but not that part of the content of the confession which implicated Hayter.
67. Admissions made against their interests by defendants in criminal matters are generally known as confessions, which are defined by section 76 of PACE as including "any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise." Like other admissions, they are provable under an exception to the rule against hearsay, which rule I now turn to examine.
68. The function of the law of evidence in an adversarial system of justice was usefully encapsulated in paragraph 1.2 of Discussion Paper No 1 (1990) of the Law Reform Advisory Committee for Northern Ireland, Hearsay Evidence in Civil Proceedings. It was there described as being
The fact may, of course, be proved in some other way which does not offend against the rule.
69. The rule against hearsay has been effectively abolished in civil cases, the large majority of which are heard by judges without juries. The approach which underlies the reform brought in by the Civil Evidence Act 1995 is that a judge is equipped to determine the weight to be attributed to hearsay evidence and pay the appropriate amount of regard to it in assessing the totality of the evidence. In criminal cases, where jury trial is the norm, the rule has been preserved, notwithstanding some proposals for its abolition.
70. The reasons for the development of the rule against hearsay incorporate two strands, unreliability and unfairness. As it is stated in Cross & Tapper on Evidence, 8th ed (1995), p 565,
Sir Rupert Cross did not consider that distrust of the jury was a historically accurate ground for the development, but it seems probable that it played some part in it. As Lord Bridge of Harwich put it in R v Blastland  AC 41, 54:
The weakness of hearsay evidence which is most constantly described is that its quality cannot be directly tested in court. As Lord Normand observed in Teper v The Queen  AC 480, 486,
71. The second major principle to which I referred at the beginning of this opinion was that evidence which is admissible only against one co-defendant cannot be taken into account when assessing the guilt of another. The rule has no exception at common law; a confession is inadmissible hearsay against all but the maker of it: Murphy on Evidence, 8th ed (2003) para 8.15.3.
72. Before I discuss the application of these principles to the present appeal I must refer again to section 74(1) of PACE. This permits proof of a conviction without the necessity of calling evidence over again to prove the commission of the offence by the person convicted, the avowed object of the provision: see Hansard, HC Debates, 8 March 1984, cols 1625-6. The section abolished the much-criticised rule in Hollington v F Hewthorn & Co Ltd  KB 587. It cannot, however, be directly invoked, as both the judge and the Court of Appeal accepted, since at the direction stage Ryan had not been convicted of any offence. The enactment of section 74 has, however, been invoked as a justification for amending the common law rule in the manner adopted in the lower courts.
73. The submission advanced by the Crown and accepted in the lower courts was that the jury would be entitled to take into account against Hayter the fact, if they found it to be established, that Ryan killed Commatteo and to add that to the circumstantial evidence in order to constitute a case of murder against Hayter. In my opinion this approach is flawed and cannot withstand examination. The case against Ryan depended critically on acceptance of the truth of his confessions to Vanessa Salter. To establish that he killed Commatteo it is essential to have regard to the content of that statement. Yet the jury was directed by the judge to disregard its content in considering the case against Hayter, since it was hearsay, but to take into account the fact that they found Ryan guilty on it. This instruction requires them not only to engage in mental gymnastics of an advanced and sophisticated kind which it is hard to expect the average jury to perform, but to indulge in what to my mind is false sophistry. I am quite unable to understand how any tribunal of fact, judge or jury, can legitimately take into account against one defendant a finding of guilt against another which is based almost solely on a confession whose contents are inadmissible against the first. I agree with the view expressed by Lord Rodger of Earlsferry at paragraph 47 of his opinion that this would be to turn inadmissible into admissible evidence. Such alchemy should not form part of the criminal law. Nor is it desirable that juries should be given directions which require them to draw such difficult distinctions and which are bound to cause confusion in their minds and misunderstanding. Those concerned with reform of the law of evidence regularly state that the requirements for a rational law are simplicity, certainty and fairness. The approach adopted by the courts below would certainly fail to meet either of the first two criteria.
74. At the direction stage the evidence against each defendant must be considered as it then stands. The judge applies the test whether a reasonable jury properly directed could on that evidence find the charge proved beyond reasonable doubt against that defendant. It has to be borne in mind that only the evidence admissible against each defendant can be taken into account. At that stage the only evidence admissible against Hayter was insufficient to prove his guilt. The only means of linking him with the murder of Commatteo was through the confession made by Ryan, which was inadmissible against him. The way in which the lower courts approached this was by positing that the jury could on the evidence given in the prosecution case consider Ryan's case first, then if they found him guilty use the fact of his conviction to provide the necessary link between Hayter and Ryan's acts. But the only way in which they could find Ryan guilty was to rely on his confession. I am unable to agree with the view expressed by the judge and accepted by the Court of Appeal that the prosecution were not using Ryan's confession to confront any part of Hayter's defence. It seems to me inescapable that that is just what they were doing. Nor can I agree that the legislative policy behind the enactment of section 74 of PACE can give legitimacy to the course regarded as possible by the lower courts. However desirable it may be that rules of law which some might regard as technicalities should not be allowed to stand in the way of the achievement of a just result, that indirect reliance on the confession as against Hayter is in my view an impermissible breach of principle. If it is thought that that principle should be modified in the public interest - as to which there might be widely differing views when all the implications are considered - it is for Parliament to do it. The reasons set out by Lord Rodger of Earlsferry in paragraphs 54 to 57 of his opinion are in my view compelling.